Bombay High Court
The Peerless General Finance & ... vs Swan Mills Limited & Others on 30 June, 1999
Equivalent citations: 2000(1)BOMCR48
Author: F.I. Rebello
Bench: F.I. Rebello
ORDER F.I. Rebello, J.
1. Leave under Rule 127 of the High Court (Original Side) Rules granted to the defendant No. 1 to take out Chamber Summons in terms of the draft Chamber Summons handed in.
2. By the present Chamber Summons, judgment debtor defendant No. 1 have prayed for a declaration that the consent decree dated 7th July, 1997 as modified on 26th November, 1997 between the defendant No. 1 and defendant No. 11 is not executable in view of the fact that the same has not been registered and stamped as required by law. Interim relief has been prayed for pending the hearing and final disposal of the Chamber Summons.
3. On behalf of the judgment debtors, their learned Counsel contends that the consent decree purports to create interest in property and as such required registration under section 17 of the Indian Registration Act, 1908. It is further contended that by virtue of section 49 of the Indian Registration Act, a document which is not registered cannot be considered being void ab initio and consequently the decree cannot be executed. It is further contended that the decree was drawn up on 30th September, 1998 and the decree could have been registered up to 30th January, 1999 and with the permission of the Authorities under the Act up to 30th May, 1999. On behalf of the decree holder a preliminary objection was raised pertaining to estoppel and/or in the alternative constructive resjudicata. It has been pointed out that the first proceedings for execution in respect of which matter had arisen before this Court the learned Single Judge has passed an order on 11th February, 1999 and the Division Bench on 12th March, 1999. In reply it is contended that as the decree still could be registered the question of raising that objection did not arise and at any rate there can be no estoppel against law. Various judgments have also been cited for the various propositions.
4. In the first instance as I am dealing only with the issue whether the interim relief as prayed for can be granted. I do not propose to go into the issue of estoppel or resjudicata as presently before me no reply has been filed by the decree holder. The submissions are oral. There must be pleadings to correctly appreciate the said contentions.
5. Prima facie, the question is whether the document referred to and which is the subject matter of the decree purports to create any interest in the property which required it to be registered. Firstly, if the arguments on behalf of the present judgment debtor is accepted that the said document created interest in the property then the said document were not registered as required by the provisions of section 17 of the Indian Registration Act. If that be so, section 49 would come into play and as such there would be no transfer of interest or purported transfer of interest in the property. Consequently, the question that the decree purports to create interest in the property, prima facie is not sustainable and consequently at this stage has to be rejected.
Secondly, learned Counsel has drawn my attention to the agreement and the decree and the Consent Terms which according to the learned Counsel create interest in the property. A perusal of the Agreement will indicate that this was purely a developmental agreement. This Court has consistently taken a view that an Agreement to Develop is not specifically enforceable. The reason being it does not create a transfer of any interest in immoveable property. A Development Agreement is merely an Agreement whereby a party agrees to develop certain property for a certain consideration. A perusal prima facie of Clauses 22 and 24 of the Memorandum of Understanding will establish the same.
6. However, though I have not considered the issue of estoppel and/or constructive res judicata, the fact remains that the judgment debtor in proceedings before the learned Single Judge had agreed to the sale of the present property by excluding others in the first instance. To my mind therefore at this interim stage it will be totally unequitable to grant any relief in favour of the judgment debtor regard being had to his conduct. Having said so the interim relief as prayed for in prayer clause (b) is rejected.
7. Any status quo granted stands vacated.
8. Issuance of certified copy expedited.